Pakistan: 'As if hell fell on me': The human rights crisis in northwest Pakistan

8/9/2019 Pakistan: 'As if hell fell on me': The human rights crisis in northwest Pakistan

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as if hell fell on meTHE HUmAn rIgHTS CrISIS In norTHWEST PAKISTAn


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CONTENTSINTRODUCTION AND SUMMARY...................................................................................7

Key Recommendations .............................................................................................17

Methodology ...........................................................................................................19

BACKGROUND...........................................................................................................20

The Taleban in the Federally Administered Tribal Areas ...............................................20

Khyber Agency .....................................................................................................20

Kurram Agency.....................................................................................................21

Orakzai Agency.....................................................................................................21

Mohmand Agency .................................................................................................22

Bajaur Agency......................................................................................................23

South Waziristan Agency .......................................................................................24

North Waziristan...................................................................................................25

A Legacy of Neglect and Misrule: The Frontier Crimes Regulation .................................26

Actors in the Conflict in Northwestern Pakistan...........................................................29

Taleban and Insurgent Groups ...............................................................................29

Government Forces ...............................................................................................32

Pakistans Ambivalent Policy in the Northwest ............................................................34

Peace Agreements with Insurgents .........................................................................35

HUMAN RIGHTS ABUSES AND HUMANITARIAN CRISIS IN NORTHWESTERN PAKISTAN

.................................................................................................................................38

Human Rights Abuses by the Taleban and Other Insurgent Groups................................39

Violent Imposition of Discriminatory Social Norms ...................................................39


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Restrictions on the Rights of Women and Girls ........................................................41

Targeting of Schools, Especially Schools for Girls ....................................................42

Unlawful Killings, Torture and Other Ill-treatment Imposed by Taleban Tribunals..... 43

Destroying the Old Order: Attacks on Government Agents, Maliks, and Tribal Elders.... 44

Violations by the Government Forces ......................................................................... 49

Government Violations in the Operations in Bajaur and Mohmand Agencies, 2008 ..... 50

Battle of Loi Sam, Bajaur, August 2008... 50

Bombing of the Kala Pani Water Spring, Bajaur Agency, November 2008. 53

Bombing of Michni Area, Mohmand Agency, November 2008.. 54

Eruption Out of FATA: Human Rights Abuses in Malakand, 2009 ................................56

Political Background to the Malakand Crisis ...........................................................56

The Human Rights Dimension of the Swat Crisis .....................................................59

The Taleban Expansion into Buner, April 2009 .......................................................61

Possible Extrajudicial Executions and Deaths in Army Custody in Malakand ...............63

The South Waziristan Operation, 2009 ...................................................................... 64

Violation of Rights of Detainees in Army Custody ........................................................66

Human Rights Abuses by Tribal Lashkars .................................................................. 67

Civilians in the Crossfire .......................................................................................... 67

THE CRISIS OF DISPLACEMENT.................................................................................75

Conditions of Return................................................................................................ 82

THE ROLE OF THE INTERNATIONAL COMMUNITY....................................................... 84

The USA ................................................................................................................84

China.....................................................................................................................91

APPLICABLE INTERNATIONAL LEGAL FRAMEWORKS..................................................93


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International Human Rights Law: Protecting Rights in Times of War and Peace ..............93

International Humanitarian Law: Protecting Individuals in armed conflict ......................95

International Criminal Law........................................................................................98

RECOMMENDATIONS.................................................................................................99

Recommendations to the Government of Pakistan .......................................................99

Pakistan Governments Failure to Protect against Abuses by Insurgents....................100

Violations of Human Rights and Humanitarian Law by Pakistani Security Forces .......101

Arbitrary Detention by the Military........................................................................103

Abuses by the Pakistani Taleban and Allied Armed Groups .........................................104

Human Rights of Internally Displaced Persons ..........................................................105

Assistance by the International Community ..............................................................106

APPENDIX 1: GLOSSARY .......................................................................................108

ENDNOTES...........................................................................................................109


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As If Hell Fell On Me: The Human Rights Crisis in Northwest Pakistan

Index: ASA 33/004/2010 Amnesty International June 2010

7

INTRODUCTION AND

SUMMARY

The Taleban came here and settled here. Now they

have a dispute with the government, and the

government started taking actions against them.

If we stand with the government the Taleban willhit us. If we stand with the Taleban the

government will target us. If we dont stand with

any of them, you can see how bad our situation is.

Its going from bad to worse.1

Northwest Pakistan has been in the grip of a human rights and humanitarian crisis since

2004, when groups broadly aligned with the Taleban movement of Afghanistan beganasserting control in the seven agencies that comprise the Federally Administered Tribal

Areas (FATA), and adjoining areas in Pakistans North West Frontier Province (NWFP). The

mountainous terrain of FATA borders Afghanistan, adjoining the NWFP, which also shares

some of its border with Afghanistan. (The NWFP was renamed Khyber Pakhtunkhwa in April

2010, but NWFP persists among officials, locals and observers, and is used in this report to

avoid confusion.)

Based on Amnesty Internationals conservative analysis of credible, publicly available

information, more than 1,300 civilians were killed in the course of the conflict in northwest

Pakistan in 2009. The Pakistan-based Institute for Peace Studies (PIPS), and the

International Institute for Strategic Studies, have both estimated more than 11,000

casualties. PIPS estimated that at least 1,565 civilians were killed in insurgent attacks alone

in FATA and NWFP in 2009.2 Given the lack of information from many areas of northwest

Pakistan, it is quite likely that the true number of civilians killed is significantly higher. In

total, more than 8,500 people have died in the violence in northwest Pakistan in 2009, a

sharp escalation from the previous year.3 Multiple accounts of battles and conflict zones

provided to Amnesty International would suggest that this ratio of casualties understates the

harm to civilians, but more detailed analyses must await better information, particularly from


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8 As If Hell Fell On Me: The Human Rights Crisis in Northwest Pakistan


the Pakistani military. What is indisputably clear is that the range and ferocity of the conflict

has risen considerably in the past two years.

Total conflict-related incidents in FATA and NWFP

2008-2009

8

1

2

3

5

9

4

9

8

0

2

9

7

6

5

1

8

8

4

8

1

8

4

1

5

1

3

4

0 500 1000 1500 2000 2500

2008

2009

Government air strikes Government ground operations/clashes with Taleban

Insurgency attacks Clash/Taleban v tribal militia forces

Other a ttacks (c ross border/unidenti fi ed ) US Drone a ttacks

Total conflict related incidents in FATA and NWFP 2008-2009 (Monthly Trend)

76

122

186

260

176

231

114

41

106

44

143

69

89

115

302

313

3529

2520

1210

48 52

0

50

100

150

200

250

300

350

January February March April May June July August September October November December

2009

2008

The conflict and associated insecurity have forcibly displaced hundreds of thousands of

Pakistanis at one point in May 2009, more than two million people had fled the fighting

in various areas of northwest Pakistan, and as this report was being finalized in May 2010,


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9

more than a million people were displaced from conflict affected areas in NWFP and FATA

(including people displaced from the conflicts in Malakand and South Waziristan in 2009

and new displacement exodus from Orakzai and Kurram agencies).4

Many areas of northern FATAincluding districts of Bajaur, Mohmand, and Khyber

agenciesnow resemble Taleban-ruled Afghanistan in the late 1990s. Taleban militantspatrol the streets in trucks, carrying- and using -rocket propelled grenade launchers and

automatic weapons. They impose strict social codes on civilians, forcing men to wear long

beards and women to wear full veils or burqas. These and other actions are abuses of a whole

range of human rights of local residents, including to life, to liberty and security of the

person, to non-discrimination, freedom of expression, religion, association and movement,

and the prohibition of torture and ill-treatment.

Many of the Talebans acts constitute crimes under international law. They are also crimes

under Pakistans law but in the absence of suitable judicial structures and the Pakistan

governments inability or lack of will to protect the local population from such crimes, these

crimes have been committed with impunity.

Taleban attacks - civilian v military targets in the conflict inFATA and NWFP 2008-2009

149

340

74

228

30

59

0 100 200 300 400 500 600 700

2008

2009

*This chart includes insurgent attacks on military targets (government forces, including lashkars) and civilian targets.

Civilians and civilian objects Military targets Military targets with civilian casualties

Such a crisis is particularly notable when it takes place in an area as geopolitically sensitive

as northwestern Pakistan. Because of its proximity and close connection to southern

Afghanistan, it has become the focus of US military and political activity (as the

administration of US President Barack Obama has shifted attention away from Iraq andtoward Afghanistan and Pakistan). The area is close to Kashmir, one of the main sources of

ongoing tension between Pakistan and its fellow nuclear-armed neighbour, India. The two

countries have fought three major wars since 1947, and in 1999 came close to all-out war in

Kargil. Northwestern Pakistan also borders Chinas restive resource rich and Muslim-majority

Xinjiang Uighur Autonomous Region, the site of recent violent unrest. All this is only a

hundred kilometres from Islamabad, the capital of a country recently contending with military


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rule and serious political instability.

The strategic import of FATA and NWFP has played a major part in the ongoing misery of the

millions of people living there. Various governments have treated FATA and NWFP as

geostrategic assets only, without due consideration for the welfare of the people. From the

time of the British Raj to the formation of Pakistan in 1947, up to the Soviet invasion ofneighbouring Afghanistan and the ensuing response, much of which was based in northwest

Pakistan, and to the present day, the people of this area have largely suffered from neglect or

violence from their rulers and various armed insurgent groups.

With this report, Amnesty International seeks to highlight the government of Pakistans duty

to protect the people of northwest Pakistan, and promote their well-being and dignity. The

whole range of human rightseconomic, social, cultural, civil and politicalhave remained

largely unfulfilled. Most discussions of the conflict ignore the fact that northwest Pakistan is

heavily populated and that the majority of people who live in FATA and other areas of

northwest Pakistan do not support or take part in violence and are going about the business

of trying to farm, raise livestock, weave fabrics, transport goods, raise families, and build,

repair, or teach. The well-being of these civilians is rarely mentioned in media reports or

policy pronouncements by Taleban or US, Pakistani, or Afghan officials and there are fewsigns that leaders on either side of the conflict factor civilians into their policies or strategic

analyses.

Addressing this historical neglect is necessary for ensuring the basic rights of the people of

FATA and NWFP. Doing so could also go a long way toward removing the conditions that have

led to decades of conflict and associated human rights abuses. In a place where human

rights are seldom remembered, much less practiced, history has demonstrated that military

force alone is not the answer to the longstanding human rights crisis in FATA and NWFP.

FATA has historically been treated with disdain by Pakistans governments, whether civilian

or military; a renegade area that the government has done little to develop or protect. The

people of FATAoverwhelmingly members of the Pashtun ethnic groupalready suffer from

some of the lowest standards of living in Asia, and are particularly vulnerable to the impact of

the conflict and insecurity caused by the Pakistan Taleban insurgency and the governments

harsh response. There is an overall literacy rate of 17 percent (compared to 43 percent

nationally), dipping down to seven percent for women and girls in FATA older than 10 years

old. It is only marginally better in NWFP, where only 22 percent of women and girls older

than 15 can read and write. . Nearly two-thirds of the population lives below the national

poverty level;the health system operates 33 hospitals to cover 3 million people, and has a

doctor to patient ratio of 1:5,957.5 Repression, conflict, and destruction in FATA only

intensify the misery of civilians who already receive insufficient government services.

The basic living conditions of the people of FATA have significantly deteriorated as the

Pakistani Taleban and allied insurgent groups have consolidated their hold on the area,

following the trend that began with the influx of Taleban insurgents fleeing the US-led

invasion of Afghanistan in late 2001. It is important to note that the Talebans ideology andsystem of rule was and remains alien to the majority of people of FATA. The Taleban

undermined the semi-feudal tribal system that still legally governs FATA, and in fact used

this systems manifest weaknesses and inequities (some of which are detailed in this report)

to justify assuming power.

The Talebanization of FATA began from the western-most areas of FATA, in South and North


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11

Waziristan, which had received most of the influx of Afghan Taleban and allied fighters from

other countries after late 2001; these areas continue to be widely viewed as one of the main

operating bases for Osama bin Laden and members of Al Qaida. In this report, Amnesty

International has used the general term Pakistani Taleban to refer to the federation of

armed groups fighting the Pakistani government in northwest Pakistan that identify

themselves as following the Taleban ideologically and with some degree of operational

agreement.

The Pakistani Taleban have combined a harsh interpretation of Islamic doctrine (distinct

from the local, conservative practice of Sunni Islam), unprecedented violence (including the

intentional targeting of civilians), and intimidation to drive out the already weak government

institutions and fill the void with their own style and system of governance, establishing

offices and tribunals, and meting out their own punishments: executing, publicly lashing,

beating and fining people for violating new codes of conduct. Taleban forces in FATA have

prohibited music, forced men to grow beards, destroyed hundreds of schools and effectively

stopped the operation of all schools in the area. They have used force to enforce their

dictates that both women and girls be veiled and accompanied by male relatives when going

outside their homes, and have severely limited the operations of health clinics and

humanitarian agencies. The Taleban have systematically abused the right to life, and to

freedom from arbitrary detention, torture, gender, religious, and ethnic discrimination, and

the right to free expressionamong other internationally recognized human rights.

In conducting their military operations, the Pakistani Taleban have systematically targeted

civilians and civilian property, including those they regard as being associated with the

Pakistan government or otherwise opposed to the Taleban ideology. Even when the Taleban

and their allied insurgent forces have attacked Pakistan military forces, they have used

indiscriminate or disproportionate force, in violation of the laws of war, often leading to

civilian deaths.


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Number of incidents of Taleban attacks on civilians and civilian objects and possible indiscriminate attacks

NWFP and FATA - 2008-2009 Monthly Trend

1

6

4

109

35

12

28

26

34 35

19

36

17

27

2 23

1

4

1

32

3

6

23 3

10

1

35

16

9

10

20

28

33

34

5 55

8

3

6

443

0

5

10

15

20

25

30

35

40

Janu

ary

Febru

ary

Ma

rch

A

pril

M

ay

June

July

Aug

ust

Septem

ber

Octo

ber

Novem

ber

Decem

ber

Janu

ary

Febru

ary

Ma

rch

A

pril

M

ay

June

July

Aug

ust

Septem

ber

Octo

ber

Novem

ber

Decem

ber

2008 2009

Legend: Top line - Attacks on civilians and civilian objects;

Bottom line - Attacks on military targets with civilian casualties

Civilian Casualties in T aleban direct attacks on civilian targets and in possible indiscriminate attacks

in FATA and NWFP 2008-2009

11

120

46

12 11

24

8

68

39

53

81

31

58

112

12

78

24

59

214

77

17 4 3

24

0

29

1324

155 4

29

414

209

26

54

0

94

4252 52

44 45

32

0

50

100

150

200

250

January

February

March

April

M

ay

Ju

ne

J

uly

Aug

ust

Septem

ber

O

ctober

Novemb

er

Decem

ber

January

February

March

April

M

ay

Ju

ne

J

uly

Aug

ust

Septem

ber

O

ctober

Novemb

er

Decem

ber

2008 2009

Legend: Top line - Attacks on civilians and civilian objects;

Bottom line - Attacks on military targets with civilian casualties


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13

Taleban militants have regularly positioned themselves in civilian residential areas,

significantly increasing the risk to civilian lives and property. During operations in Bajaur in

August 2008, and again in South Waziristan in October 2009, Amnesty International

documented incidents of the Taleban blocking people attempting to flee incipient or ongoingfighting, apparently because they believed they would be less susceptible to attack if civilians

remained. Moreover, both government and Taleban forces have stationed fighters in schools,

which have led to the schools being targeted. Many of these acts constitute violations of

international humanitarian law and abuses of human rights.

The Pakistani Taleban have a history and leadership distinct from the Afghan Taleban. But

since 2005, Pakistani Taleban groups have more closely linked their activities to those of the

Taleban in Afghanistan, launching cross-border military operations against Afghan, ISAF

(International Security Assistance Force, comprising troops from the North Atlantic Treaty

Organization as well as allied countries), and US military forces in Afghanistan (as well as on

their supply routes through Pakistan). By late 2008, Taleban forces had also spread into

several non-FATA areas in NWFP, including near Peshawar and in the northern districts of

Chitral and Swat. This expansion was particularly notable because these areas are referred toas settled areas, in contrast to the tribal areas of FATA, and are more heavily populated and

better developed than FATA (and in the case of the Swat valley, because it is a picturesque

tourist destination only 100 kilometres from Islamabad). The Pakistani Talebans impact on

the US-led military operations in Afghanistan and infringement on the Pakistani heartland

finally prompted attention internationally and domestically and goaded the Pakistani

government into more serious action, at least in the short term.

The Pakistani governments response has vacillated between appeasing the Pakistani Taleban

through a series of failed peace deals that effectively abandoned the rights of FATAs people

in exchange for short-term military cease-fires, and launching heavy-handed, often

indiscriminate and disproportionate, military operations that have seriously damaged the

areas already weak civilian infrastructure and precipitated the displacement of hundreds of

thousands of people. In April 2009, in one example of a peace deal enacted by thePakistani government that undermined the rights of its own citizens, President Asif Zardari

signed into law an official agreement to transfer administrative and judicial authority over the

Swat valley (in NWFP) to the Taleban in exchange for a guarantee that the Taleban would not

attack government troops. There was no mention of the rights of the nearly 3 million people

living in the area. As in previous instances, the peace deal was fragile, and the Taleban

aggressively used the lull to push into new areas, to the consternation of the Pakistani public

and Pakistans international supporters, chief among them the USA. Days after signing the

peace deal in Swat, the government responded by launching another massive military

operation in April 2009 which forcibly displaced more than two million Pakistanis from their

homes.

Since 2001, Pakistan has deployed tanks, artillery, jet fighters and bombers, helicopter

gunships, and thousands of regular military troops to FATA. This deployment of heavily armedtroops was unprecedented in FATAs history. The Pakistani military is trained and equipped

for fighting a mechanized campaign against India, not to fight counter-insurgency in difficult

terrain. Amnesty Internationals research in FATA (as well as areas of the neighbouring NWFP

affected by this conflict) demonstrates that the Pakistani military has not taken sufficient

care to minimize the risk to civilians, often resorting to indiscriminate or disproportionate


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force in its operations. Some operations have directly targeted militants, leaving civilians

relatively unscathed. But in many other operations, government forces have failed to

differentiate between civilians and militants, or have used disproportionate force, leaving

numerous civilians dead, injured, or displaced.

Pakistani government forces have detained hundreds, if not thousands, of FATA residents onsuspicion of cooperating with the Pakistani Taleban. Amnesty International has corroborated

media reports that Pakistani security forces have detained Taleban fighters, as well as more

senior leaders, in recent sweeps in late 2009 and early 2010 and have held them in

unofficial detention facilities on military bases in the region. There is no public information

on the number of insurgents detained from the operations conducted since 2008 in the

northwest or their current whereabouts, but credible media reports suggest that some 2,500

people were in detention in the first half of 2010.6Amnesty International and other human

rights groups believe that the numbers subjected to enforced disappearances could be much

higher. These detainees are not held under any clear legal framework under Pakistans law,

given FATAs special legal status and the inapplicability of many laws to the regionwhile

keeping in mind that Pakistan generally lacks a clear legal guideline for combating

insurgency. These legal problems are compounded by the difficulties inherent in law

enforcement in an insurgency setting. Given the well-documented record of abuse by

Pakistans security agencies, there are ample grounds to fear that these detainees have been

subjected to arbitrary detention and in some cases to torture or other ill-treatment.

Another problematic strategy adopted by the Pakistani government has been increasing

support for the creation of local militias known as lashkars(armies). These militias, drawn

from tribal groups, are poorly trained, subject to little oversight and monitoring, and operate

without any accountability. In many instances, they have engaged in reprisals against

suspected Taleban or even in tribal feuds; in other instances, they are little more than

bandits. The Pakistani government can and must do more to ensure that, if they are to be

permitted, any such groups are trained and monitored and held accountable to ensure that

they do not add to the misery of the residents of FATA.

The consequences of all these abusesboth abuses of human rights and the conflict-relatedrise in deaths, injuries, destruction of property, displacement, and overall levels of insecurity

and terror among civilianshave significantly harmed social and economic life in FATA and

many parts of NWFP. Hundreds of thousands of FATAs nearly four million residents have

fled the increasing brutality of the Pakistani Taleban and of the governments military

response. Many houses and properties have been destroyed and scores of schools and

hospitals have closed. In many areas, markets have been deserted and commerce has slowed

significantly. Hundreds of thousands (ranging as high as more than two million in June

2009) of those who have fled from their homes have often left behind livestock, property,

and money. These internally displaced Pakistanis face an intolerable situation. They suffer if

they stay in the conflict zone, but have to brave long curfews and run an obstacle course of

road blocks to flee. Even once away from the front lines, displaced civilians find themselves

without sufficient assistance to fulfil their basic needs and security. Domestic andinternational humanitarian relief organizations had limited access to the newly displaced.

Thousands of internally displaced people have sought shelter and assistance in camps once

dedicated to helping Afghan refugees. But far more have shunned the difficulty and indignity

of living in camps and have instead settled with friends and family or in urban areas far from

the fightingwithout access to regular monitoring and assistance. As the fighting waxes and

wanes, including to areas inside and outside of FATA, newly displaced people take the place


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15

of those who have been able to return to their homes.

The displacement crisis in Pakistan continues and while some are returning to their homes,

for many of those who have left homes in FATA, there is no end in sight. The plight of the

hundreds of thousands of Pakistanis who have become internally displaced people requires

the government to meet certain minimum standards of assistance and treatment, including inline with the widely accepted United Nations Guidelines on Internal Displacement.

Many of the basic problems of the people of FATA and adjoining areas of the NWFP can be

traced to the colonial-era system of regulations known as the Frontier Crimes Regulations

(FCR), a legal leftover from the days of British control that limits government responsibility to

citizens in the FATA areas, and permits government forces to use anachronistic methods of

governances such as collective punishment, guilt by association, and disproportionate attacks

and punishments. The FCR has been called A bad law nobody can defend by the

independent Human Rights Commission of Pakistana sentiment widely shared by dozens of

people Amnesty International interviewed, ranging from farmers in FATA to government

officials, lawyers, academics, and military experts.

FATAs lawlessness and the weaknesses of Pakistan state control enabled insurgent groups

linked to the Taleban, after being chased from Afghanistan, to create a sanctuary there. And

it was quite predictable that these groups would seek to expand their control into

neighbouring areas in NWFP. Just as the crisis in FATA and northwest Pakistan has arisen in

part because of Pakistans disdain for the area and the antiquated FCR, the solutions to

problems will entail reform of the political and legal arrangements in FATA. The Pakistani

government must thoroughly reform or abandon the FCR, allow the areas residents to

participate without discrimination in the countrys political life, and ensure that the human

rights of all the areas residents are fully protected.

But other concrete actions will also be necessary: increased development efforts in the long

term, more political attention from Pakistans central government to the needs of civilians,

and, in the interim, more precise military operations that are conducted with due concern for

civilians.

But other concrete actions will also be necessary: increased development efforts in the long

term, more political attention from Pakistans central government to the needs of civilians,

and, in the interim, more precise military operations that are conducted with due concerns

for civilians.

Amnesty International recognizes that the Pakistan governments military operations in NWFP

and FATA are part of efforts to counter an insurgency which itself operates with little regard

for the civilian population. Amnesty Internationals research shows that these groups carry

out illegal attacks, often with little respect for civilian life. Insurgent forces have violated

international humanitarian law by intentionally and unnecessarily locating themselves and

their military equipment within or near densely populated areas and in the vicinity of

buildings primarily used by civilians (such as schools, health clinics, and mosques), for the

purposes of exploiting the presence of civilians to protect themselves from attack. AmnestyInternational appreciates the difficulties and complexities of military operations in the

counterinsurgency context, and government efforts to establish control over areas that have

historically been resistant to outside influence. It is the duty and responsibility of the

Pakistani government to protect the well-being of its citizens when threatened by armed

groups.


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Yet at the same time Pakistani forces must recognize that the rights of the civilian residents

of NWFP and FATA are not negotiable, no matter what tactics the insurgents use. The

Talebans abuses and the underlying difficulty in addressing those abuses do not negate the

Pakistani governments obligations to uphold human rights law and abide by the laws of

armed conflict. Regardless of insurgents unlawful tactics, Pakistani forces must take the

necessary precautions, as dictated by international humanitarian law and human rights

standards, to minimize injury to civilians.

A recommendations section outlining more detailed proposals is provided at the end of this

report. In weighing those recommendations, both Pakistan and its international supporters

should recall that the importance of curbing human rights abuses is not merely local to

Pakistan or relevant only to the security of civilians living in Pakistan. The insurgent abuses

described in this report have occurred as part of their efforts to carve out a safe area to

recruit, organize, and train fightersnot only to launch military attacks in Pakistan and

Afghanistan but also armed attacks on far-off international targets, all of which often result in

civilian casualties.

Several bodies of international law apply to the conflict in Pakistan. Some rules will be

examined in greater detail where relevant later in the report, but the summary below sets outa general overview. A detailed discussion of applicable international law appears below in the

section on Applicable International Legal Frameworks.

As a conflict taking place within the territory of a single state between one or more armed

groups and the government, the conflict in Pakistan is classified as an armed conflict of a

non-international character.

International human rights law applies both in peacetime and during armed conflict and is

legally binding on states and has implications for non-state actors. International

humanitarian law (IHL) also known as the laws of war or the law of armed conflict, is binding

on all parties to an armed conflict (regardless of whether the conflict is international or non-

international), including non-state armed groups. Under international criminal law,

individuals may be held criminally responsible for certain violations of international human

rights law, such as torture and enforced disappearance, for crimes against humanity and

genocide, and for serious violations of IHL, such as war crimes. International law also

provides a framework to address the issue of the right to remedy and reparations for victims.

Establishing the rule of law, installing proper judicial and institutions and representative and

responsive political processes, respecting human rights, increasing development and

employment opportunities, and improving the education and healthcare systems will not only

benefit the people of FATA; it could also benefit those around the world who are at risk of

indiscriminate violence launched or initiated by armed groups who currently exploit the

situation in FATA.

The organization urgently calls on the Government of Pakistan to address the underlying

violations of economic, social, political and civil rights, which would make an essential

contribution to ending the conflict-related insecurity contributing to the misery of the peoplein the area. The FATA reform agenda announced by President Zardari in August 2009

indicates official realization of this need, but these reforms, if implemented can only be a

first step to full respect for the political and civil rights of the people of FATA.

The international community, too, and in particular the USA and China, have a role to play:

they must urge Pakistan to abide by international human rights standards and to initiate


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17

political reform that will end the areas political isolation and deprivation of rights.

Number of US drone attacks - FATA-NWFP 2005-2009

1

1511

19

40

32

111

0

10

20

30

40

50

60

2005 2006 2007 2008 2009

This chart presents number of drone attacks - killing Taleban and al-Qai'da and possible indiscriminate drone attacks, which result in killing or

wounding civilians

US drone attack - with civilian casualties US drone attack

KEY RECOMMENDATIONS

Amnesty International in particular urges the government of Pakistan to:

Ensure that all state security forces operating in FATA and NWFP, including thePakistani military and the Frontier Corps, the Frontier Constabulary and tribal lashkars, are

adequately trained, equipped, and disciplined to comply with their obligations under

international human rights law and humanitarian law for protecting the rights of the people of

Pakistan, not simply combat duty;

Amend the Frontier Crimes Regulation to bring it in line with Pakistans internationalhuman rights obligations, including as guaranteed by the constitution, or else abolish it with

a view to placing the people of FATA under the protection of the regular law and judicialinstitutions of Pakistan;

Incorporate benchmarks for combined military and civilian action in northwest Pakistanthat focus on protecting and promoting the rights of the civilian population (including those

displaced from their homes), for instance by measuring access to education and health care


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(particularly for women and girls, who have been systematically targeted by the Taleban);

Immediately transfer any detained insurgents suspected of having committed crimes tocivilian law enforcement agencies and facilitate successful prosecution of crimes committed

by insurgents by strengthening the capacity of law enforcement agencies in FATA, including

the Frontier Corps and the Frontier Constabulary and more generally the police force in

NWFP, improve their training (including human rights law training) and equipment in the

areas of forensics capabilities and crime scene investigations, crime labs with modern

equipment and trained scientists.

Amnesty International also urges the Pakistani Taleban and their allied armed groups to:

Publicly acknowledge the obligations to comply fully with international humanitarian lawand make a public commitment to respect the human rights recognised in the Universal

Declaration of Human Rights and under international human rights treaties and customary

international law;

Publicly condemn, from the highest level of leadership, all attacks directed at civilians,and indiscriminate and disproportionate attacks; use of human shields, abduction, hostage-

taking, unlawful killings, torture and other ill-treatment, and issue instructions to members

strictly prohibiting such acts in all circumstances;

Publicly denounce gender-based violence, whenever and wherever it occurs.

Amnesty International urges the United States of America to:

Undertake proper monitoring of the impact of drone attacks on the civilian population,and clarify the chain of command and rules of engagement governing the use of drones inPakistan; investigate, discipline or prosecute, in a credible and transparent manner any

officials found guilty of violating IHL or rules of engagement in conducting drone strikes;

Apply, without waivers, the Leahy Law provisions of the Foreign OperationsAppropriations Act and the Defense Appropriations Act, which call for closely monitoring the

conduct of military units in countries receiving US military aid to see if they have committed

gross violations of human rights and, if so, to ensure that the Pakistani government has taken

effective measures to provide accountability for such violations.


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19

METHODOLOGY

This report is based on over 300 interviews conducted by Amnesty International beginning in

the second half of 2008, through 2009, and up to May 2010. The majority of the interviews

were conducted with people living in five of FATAs seven agencies: Bajaur, Khyber, Kurram,

South Waziristan and Mohmand, as well as in Malakand division of NWFP. Additional

interviews were conducted with FATA residents in Peshawar, and in camps for people that

the conflict displaced. Amnesty International also interviewed senior government officials,

military officers, aid workers, academics, as well as officials of other governments.

This report focuses on the impact of the increased conflict on the human rights of the areas

residents, and does not cover all types of abuses in all of the seven agencies in FATA or in

NWFP. Most of the FATA residents interviewed for this reportdoctors, students, tribal

elders, drivers, shopkeepers, and farmers, among othersprovided firsthand accounts of

insurgent and government abuses. Many provided rich descriptions of day-to-day life in FATA

and how their lives had changed for the worse with the increase in Taleban and government

military operations.

The intense fighting since April 2009 has made access to most areas of FATA even more

difficult than before. Therefore, interviews were also limited due to security and logistical

restrictions. Due to security concerns in Kurram agency in particular, most of the interviews

were conducted in Lower Kurram. We could not gather enough information from North

Waziristan. Nonetheless, Amnesty International believes that the testimonies from the areas

covered in this report are emblematic of general patterns and trends of the human rights

situation in FATA.

It should be noted that people in FATA, while willing to speak out about human rights

violations committed by armed forces, were more reluctant to describe human rights abuses

by insurgent groups, fearing harassment or worse from them, and trusting little that the state

would protect them against such retaliation. It is likely, therefore, that persons interviewed

for this report underreported abuses involving insurgent groups.

A caveat on the use of numbers and statistics: The statistical material in this report draw on

Amnesty Internationals database of incidents in northwest Pakistan based on publicly

available English-language material, including material from the general media, specialized

journals, aid agencies, and nongovernmental organizations (based on our judgement as the

credibility of the source). Notwithstanding our best efforts to corroborate the information, we

recognize the inherent problems with this approach, given the lack of access of independent

observers to many areas in northwest Pakistan, the ambiguity and inconsistency of different

accounts of even the same incident, and the lack of detail in some of the reports. In cases of

ambiguous reporting, for instance about civilian casualty rates, we were extremely

conservative: no casualties were registered as being civilian unless they were explicitly

identified as such. Where different sources cited different figures, we used the lowest. Thus

we do not present this material as definitive information, but rather as indicative of trendsand comparisons.


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BACKGROUND

THE TALEBAN IN THE FEDERALLY ADMINISTERED TRIBAL AREAS

FATA comprises seven so-called Agencies: Khyber, Kurram, Orakzai, Mohmand, Bajaur,

South Waziristan and North Waziristan.7 The 1998 census, the last available accurate set of

data, registered close to 3.2 million people living in the Federally Administered Tribal Areas ;

current estimates suggest close to 3.9 residents in an area slightly smaller than Belgium at

27.22km2.

Many insurgents initially concentrated themselves in FATAs western and southernmost

agencies, North and South Waziristan. Residents in Bajaur Agency, the smallest and most

northern of FATAs seven agencies, began noticing an increased Taleban presence in 2006.In Mohmand Agency, to the south of Bajaur and north of Khyber agency, residents saw

increasing numbers of Taleban forces during 2007. In late 2007 and early 2008 insurgents

were seen in Khyber. Through the decade and into early 2009, militants increased their

strongholds in the northernmost agencies, including Bajaur, Mohmand, and Khyber. By early

2009, insurgent forces had seized control of substantial parts of nearly all seven FATA

agencies. This situation has continued into 2010, as this report was being prepared for

publication, the Pakistani military had dislodged the Taleban from parts of South Waziristan

as well as Khyber, but even in these areas, the Taleban openly contested the governments

writ.

KHYBER AGENCY

Named after the legendary Khyber Pass, the gateway to South Asia, the Khyber Agency

(2.58km2, 546,730 inhabitants according to the 1998 census), is inhabited by four tribes,

Afridi, Shinwari, Mullagori and Shimani and their sub-tribes. The political headquarters are

at Peshawar with a sub office at Landi Kotal. The Khyber Pass has retained its historic

geopolitical significance as a key transit point: Since the fall of the Afghan Taleban in late

2001, US and NATO forces in Afghanistan have shipped much of their supplies and

equipment through the Khyber Pass, with few viable alternatives. In 2008 and 2009, the

road, bridges and tunnels leading to the Pass were repeatedly blocked, and several hundred

trucks, including US military transports, were seized, looted or burned by the Taleban, who

killed dozens of truck drivers. On several occasions, the Pakistani army, under intense

pressure from the US government, has conducted fierce battles to maintain this vital supply

line. On 28 June 2008, Operation Sirat-e-Mustaqeem (Straight Path) targeted the Tehrik-e-

Taliban (TTP, Taleban Movement of Pakistan, defined in greater detail below) but ended in

early July, followed by Operation Daraghalam(Here I come) from January 2009. Anothermajor military operation began in March 2010, including aerial bombardment, and continued

as this report was prepared for publication.

The current conflict in Khyber began in late 2003, when the late Haji Namdar, a militant

with an extremist interpretation of Islam, set up the group Amr bil maroof wa nahi anil

munkir, (Promotion of Virtue and Suppression of Vice), banned music, set up an FM station


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21

to preach and maintained his own detention facility for those whom he deemed guilty of non-

Islamic behaviour.8 Despite ideological affinities, Haji Namdar refused to forge an operational

alliance with the TTP and the Pakistani Taleban, a factor that is widely believed to have led

to his assassination in 2008. As of early 2010, two groups dominated Khyber: the Lashkar-e-

Islam (Army of Islam), under the leadership of Afghan jihad veteran Mangal Bagh Afridi,

which has sought to enforce the strict Deobandi form of Sunni Islam.9 Afghanistan-born Pir

Saif ur-Rahman, who follows the competing Barelvi Sufi tradition of Sunni Islam, leads the

Ansar-ul-Islam (Soldiers of Islam).

In early 2010, the Pakistani military attempted, without clear success, to dislodge Mangal

Bagh and his Lashkar-e-Islam forces, who, according to local residents, were systematically

destroying girls schools. These forces are also routinely engaging in brigandage, abductions

and unlawful killing of civilians for ransom, often targeting areas in Peshawar and its suburb

of Hayatabad.

KURRAM AGENCY

Kurram Agency (3.38km2, 448,310 inhabitants according to the 1998 census) came under

British control relatively late in 1892. Its administrative center is Parachinar. Tribes include

Turi, Bangash and others; most Turi and some Bangash in Upper Kurram are Shia (total

42%), the rest are Sunni.

Sectarian tensions grew in Kurram for a number of reasons: the influx of hardline Sunni

Afghan refugees and Mujahideen in the 1980s; the arrival of Afghan insurgents fleeing US

and NATO forces in Afghanistan since late 2001 and military operations in other FATA areas;

and the appearance of Sunni militant groups from the Punjab after the government banned

their operations in 2002. Kurrams Shia tribes often opposed the activity of Afghan and

Pakistani Taleban, who viewed the Shia as apostates. After the fall of the Taleban

government in Kabul, Kurrams Shia tribes refused to shelter insurgents fleeing Afghanistan

from late 2001 and prevented Pakistani Taleban fighters to pass through their territory into

Afghanistan.10

By April 2010 the situation in Kurram was again tense as the army had launched operations

in central and lower Kurram agency, using heavy artillery, helicopter gunships and jet fighter

planes. The main road between Kurram and Peshawar was closed for all types of traffic which

has created acute shortages of medicine, food, oil and other items of daily use. People in

Parachinar were cut from the rest of the country except for a helicopter service which was

subject to the weather and could carry only a limited number of passengers. Due to the

ongoing operation in central and lower Kurram the route via Afghanistan was also closed,

severely limiting the flow of food staples, cooking oil, and other supplies.

ORAKZAI AGENCY

Formerly part of Frontier Region Kohat, the Orakzai Agency (1.54km2

, 225,441 inhabitants(1998 census)) was set up in 1973, with administrative headquarters in Ghiljo; it is

inhabited by Orakzai tribes and has a small population of Shia (around 10 percent).

In November 2001, the Orakzai tribes allied with the Taleban committed thousands of

fighters against US forces in Afghanistan and offered sanctuary to other Taleban.11 Over the

course of the next few years, the ideological and operational links between Afghan and


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Pakistani Taleban groups grew in the area so that by 2007 groups affiliated with the Tehrik-i-

Taliban Pakistan (Taleban Movement of Pakistan) effectively controlled large parts of the

Agency. The Pakistani government in July 2008 entered a short-lived peace pact with tribal

elders under which Taleban insurgents were banned from entering the Agency or running a

parallel government.12 By 2009, with the Taleban firmly in control of most areas of Orakzai,

Army operations intensified.13In early April 2009, the US targeted a drone attack, the first in

Orakzai, on Hakimullah Mehsud but failed. As this report was being prepared for publication,

the military had launched Operation Khwakh Ba De Sham (roughly translated from the

Pashto as I will fix you) in March 2010 after blockading many of Orakzais entry points.14

The launch of another military operation in December 2009 precipitated another wave of

displacement, as more than 23,000 families, totalling more than 130,000 people, had fled

their homes by January 2010, most of them staying with host communities. According to the

UN Office for the Coordination of Humanitarian Affairs, approximately 3,000 Shia families

who have fled the area have been particularly vulnerable as they were reluctant to go to

Kohat, a Sunni majority area, and most of them were not registered.15

MOHMAND AGENCY

Mohmand (2.3km2, 334,453 inhabitants under the 1998 census), was carved out of the

Khyber Agency in 1951; its administrative headquarter is Ghalanai. It is inhabited by the

Mohmand tribe, the Safi and Utman Khel and their sub-tribes.

Mohmand, like many other FATA areas, sheltered Afghan refugees during the 1980s, but

hosted relatively few training camps for Afghan mujahideen and other fighters. The Safi sub-

tribe maintained links to Afghan warlord Gulbuddin Hekmatyar. Local fighters joined the

volunteer force of the Tehrik-e-Nafaz-e-Shariat-e-Mohammadi (TNSM, Movement for the

Enforcement of Islamic Law) of Sufi Mohammad based in Malakand (NWFP) to fight US and

NATO troops in Afghanistan in 2001; amongst them was Omar Khalid, later Mohmands

dominant Taleban leader.

In 2007, when Omar Khalids group joined the newly formed Tehrik-i-Taliban and began to

attack government institutions, the army began low level operations. Following a May 2008

peace deal which subsequently collapsed, the army launched an offensive in October 2008,

declaring in January 2009 that key Taleban leaders had been killed. Over 27,000 families

(about 175,000 people) were displaced from Mohmand as a result of fighting in 2008. In

September 2009, the army said it had cleared 80 percent of Mohmand of insurgents, except

in strongholds along the Afghan border.16 However, early 2010 witnessed renewed fighting in

Mohmand agency, including in the Lakaro, Pindyali, Chaharmang, Anbar and Nawagai areas.

The military used jet planes, helicopter gunships, heavy artillery and mortars against

Pakistani Taleban reasserting themselves in the agency.

As of May 2010, tens of thousands of residents of Mohmand remained displaced and without

sufficient assistance. Tens of thousands were in camps previously used by Afghan refugees:in early 2010 records from Jalozai camp in Nowshera alone indicated approximately 1650

families (amounting to more than 8,000 people) from Mohmand agency. But the majority of

the displaced from Mohmand, like others who fled their homes in FATA, were not registered;

many were living in different villages of Mardan, Charsada, Nowshera, Sawabi, and Shab

Qadr.


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23

When speaking with those displaced from their homes, Amnesty International received

consistent complaints of financial hardships due to unemployment and the inaccessibility of

traditional agricultural lands. Many of the displaced also complained about the difficulty of

providing education for their children.

One displaced father told Amnesty International:

Education of our kids is another big problem as our kids are not given admission in the local

schools and we are asked to bring school leaving certificates from the school last attended by

our kids, you can understand that most of the schools have been destroyed by the militants

and many schools were destroyed by the bombing and shelling of the security forces during

the operation going on for the last two three years. How can we bring the certificates we are

asked to bring in order to get our children admitted in a school. Most of the teachers are

themselves now displaced, where can we find them.

I wish that this war ends soon and our houses, shops, schools and hospitals are rebuilt so

that we can go back to our villages. We can not go back to our homes now as we are afraid for

our and our familys lives.

BAJAUR AGENCY

Bajaur, (1.3km2, 595,227 inhabitants under the 1998 census), is inhabited by three main

tribes, the Tarkanai, Uthman Khel and Mohmands. In 1960, Bajaur was declared a sub-

division of Malakand Agency; it became a tribal Agency on 1 December 1973 with its

political headquarters at Khar.

Bordering the Afghan province of Kunar, Bajaur in the 1980s was a critical staging ground

for Afghan and local mujahideen to organise and conduct raids in Afghanistan. In October

2001, the pro-Taleban Tehrik-e-Nifaz-e-Shariat-e-Mohammed (TNSM, Movement for the

Enforcement of Islamic Sharia) is believed to have sent some 5,000 fighters from Bajaur

and surrounding areas into Afghanistan. TNSM leader and deputy leader of the Tehrik-e-

Taliban Pakistan (TTP), Maulvi Faqir Mohammad, was instrumental in seeking to impose

strict Islamic law in the area since the 1990s, prohibiting women from leaving their homesunaccompanied and banning NGO activities. One of the earliest US drone attack on 13

January 2006 targeted a dinner party hosted by him in Damadola; al-Qaidas second in

command, Dr. Ayman al-Zawahiri was amongst the targets but escaped while 18 other

persons were killed. Insurgents apparently linked to al-Qaida fighters in Afghanistan

consolidated control over Bajaur in early 2007, enforcing their harsh interpretation of Islamic

law.

In early August 2008, the Pakistan army and Frontier Corps (FC) launched Operation Sherdil

(Lion heart), involving 8,000 troops backed by attack helicopters and fighter jets. The

army in 2009 entered a peace accord under which the entire TTP leadership was to be

handed over to the state. This agreement was never enforced.17 Fighting continued through

2008 and 2009 as local tribes who had initially welcomed the Taleban in early September

2008 formed a 4,000-strong lashkarto force out remaining Taleban.18In March 2009, the

army claimed victory in Bajaur stating that 1,600 insurgents had been killed, making way for

the return of some 300,000 IDPs. Violent incidents continued at a lower level; in January

2010, media reported a rift between Pakistani Taleban in Bajaur. In early March 2010, the

army began withdrawing after recapturing Damadola, the TTP headquarters19 but remained

deployed in other parts of the agency.20


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Despite the armys declarations of dislodging the Pakistani Taleban from Bajaur, many of

tens of thousands of residents remain displaced. Several Bajauris displaced from their homes

told Amnesty International that they do not believe the governments declarations of security

and stability as similar declarations have been issued at least on four previous occasions

since the outbreak of Operation Sherdil in 2008. According to one Bajauri now displaced in

Jalozai camp: The Taleban commanders are still at large and we dont know when they

will come back and the government will start another operation. We have demanded of the

government to rebuild our houses and shops which got destroyed or damaged during the

operations.

As of April 2010, little redevelopment work had occurred in the agency. In particular

residents of Bajaur pointed out that most of the schools in the agency were destroyed by

Taleban militants or during the operation by bombing and shelling of the security forces.

Displaced residents told Amnesty International that there were some boys schools running in

Khar while in some damaged schools tents had been deployed, but the education given in

those schools was of very low standard.

SOUTH WAZIRISTAN AGENCY

South Waziristan (6.62km2, 429,841 inhabitants per the 1998 census), the largest agency

in FATA, with Tank as its winter headquarter and Wana as its summer headquarter.

Waziristan first came under British control in 1849 and divided into the tribal agencies North

and South Waziristan in 1895. The main tribes are the Wazirs and the Mehsuds (estimated

at around 300,000 people). South Waziristan served as TTP leader Baitullah Mehsuds base

until his death in August 2009. The TTP has been accused by Pakistani and American

authorities of harbouring a range of insurgents from neighbouring Afghanistan, to have

numerous training camps for insurgents, and to have conducted dozens of attacks on army

and civilian targets in different parts of Pakistan.21 The insurgents reportedly possessed

rifles, machine-guns, anti-tank weapons, especially rocket-propelled grenades, mortars and

longer-range rockets and used roadside bombs and mines.22

South Waziristan became the hub of Pakistani Taleban groups, with the influx of Afghan

Taleban fleeing the US invasion of Afghanistan, as well as support from fighters of other

nationalities and, reportedly, al Qaida, where they shared training and expertise.23 In

December 2007, Baitullah Mehsud, who had formed a local Taleban movement in South

Waziristan assumed leadership of the Tehrik-i-Taliban Pakistan (TTP), an umbrella

organization of dozens of Taleban groups throughout Pakistan (Baitullah Mehsud was killed

by a US drone strike on 5 August 2009 and succeeded by Hakimullah Mehsud).

There have been four army operations and three peace agreements in South Waziristan since

2004.

Following a series of Taleban suicide strikes in Pakistani cities,24 the fourth military

intervention, Operation Rah-e-Nijat (Path to Salvation), began on 17 October 2009. Some

30,000 soldiers, supported by anti-TTP lashkars, initially faced stiff resistance25 but

eventually insurgents, including all key TTP leaders, melted away, in the general population,

into the hills or into North Waziristan and Orakzai from where some continue to carry out

sporadic attacks on the army.

During the operations, the military targeted the Mehsud tribe collectively. Amnesty


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25

International documented multiple instances of the military blocking members of the Mehsud

tribe from using major roads to flee the conflict zone.26

As of May 2010, the Pakistani Army claimed to have taken total control of the Mehsud area

of South Waziristan, destroyed all the Taleban hideouts and training camps in the area, while

continuing search operations in the area. A meeting chaired by President Zardari in mid-March 2010, announced the end of operations on 30 March, handing over control to the civil

administration. In a meeting with the elders of the Mehsud tribe, army officials told the

elders to get ready for going back to their homes and promised help in reconstruction and

rehabilitation.

According to UNHCR the total number of people registered as displaced from South

Waziristan as of early 2010 was nearly 40,000 families, amounting to an estimated 280,000

individuals.27 Most of the displaced population from South Waziristan, like their compatriots

from other areas of FATA, are staying not in dedicated camps but rather with host families or

in rented housesplacing a serious burden on communities already suffering from high

levels of poverty and low access to health, sanitation, and education. People displaced from

South Waziristan by the 2009-2010 military offensive have received automatic bank cards

worth 5000 rupees (US$60) per family, an amount that the displaced told AmnestyInternational hardly fulfilled their needs.

As of May 2010, the Pakistani Army claimed to have taken total control of the Mehsud area

of South Waziristan, destroyed all the Taleban hideouts and training camps in the area, while

continuing search operations in the area.

Most of the Taleban who survived the operation have fled to North Waziristan, or to Orakzai

and Kurram agencies. Amnesty International has been unable to properly assess the situation

inside South Waziristan as the Pakistani military as well as the Taleban have prevented

independent observers, including most journalists, from entering areas where the operations

are being conducted.

NORTH WAZIRISTAN

The North Waziristan Agency (4.71km2, 361,246 inhabitants under the 1998 census), was

established in 1910 with headquarters at Miranshah is inhabited by Wazirs, Dawar and

several smaller tribes.

Pakistani and foreign observers widely believe that North Waziristan became a refuge,

training ground and base for attacks in Afghanistan as thousands of Taleban (along with

Arab, Chechen and Uzbek al-Qaida fighters) fled US military operations after 11 September

2001. Pakistani army operations in other FATA areas added further groups of insurgents

seeking refuge in the rugged mountains of North Waziristan.28 A September 2007 UN report

estimated that 80 percent of all suicide bombers in Afghanistan pass through training

facilities in North and South Waziristan.29

Insurgents form two core groups with various affiliates: the Haqqani network, led by

Jalaluddin Haqqani, a veteran Afghan Taleban leader, and his son, Sirajuddin Haqqani,

based near Miranshah and deploying Uzbek and other foreign fighters, have focused on

attacking ISAF (International Security Assistance Force) and US forces in Afghanistan30 while

sparing Pakistani targets.31 On 5 September 2006 the Pakistani government signed the

largely unenforced Waziristan Accord which provided for the army to cease operations and


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release arrested insurgents and for the insurgents to cease cross border attacks, while foreign

fighters were to leave or respect the law if unable to leave.32 In July 2007 the Pakistani

Taleban accused the government of violating the accord by reestablishing checkpoints but in

December 2007 and February 2008 entered further peace deals reviving the 2006 Accord.

The Pakistani military finally gave up on a diplomatic resolution to the situation in North

Waziristan when the Taleban withdrew from another peace in June 2009 in protest of drone

attacks and military action in other tribal areas33 and resumed sporadic but repeated attacks

on soldiers.

According to residents of North Waziristan who spoke to Amnesty International in early 2010,

the dominant Taleban groups in the agency have not imposed the same kind of strict

religious restrictions on residents as witnessed in other parts of FATA. But insecurity has

significantly curtailed freedom of movement and economic activity has significantly slowed.

According to residents, effectively all the girls schools are closed in North Waziristan, while

boys schools remain open with relatively low attendance due to insecurity.

Several residents also told Amnesty International that the Pakistan army is present in North

Waziristan but is confined to fortified barracks while there are some Frontier Corps check

posts operating in different parts of the agency. Pakistani Taleban and associated groups areable to roam freely and fully armed through FC check posts; as one local told Amnesty

International, not only does the FC not stop the insurgents, but on the contrary the militants

and FC personnel wave at each other in a friendly manner.

With US and NATO forces facing an estimated 10,000 North Waziristan insurgents, the

Pakistan army has come under persistent pressure to flush them out.34 The US has

increasingly resorted to drone strikes to target Taleban insurgents in North Waziristan35 As

this report was prepared for publication in May 2010, the Pakistani army threatened to

launch a major military operation in North Waziristan.36

A LEGACY OF NEGLECT AND MISRULE: THE FRONTIER CRIMESREGULATION

The residents of FATA and parts of NWFP continue to be governed by regulations dating from

the British Raj: the Frontier Crimes Regulation (FCR) of 1901. The FCR, which does not

provide legal guarantees for human rights in FATA and indeed effectively codifies authority

for a range of human rights violations, is part of a tapestry of an antiquated and draconian

system of limited government with little or no recognition of or respect for human rights, the

rule of law, due process, political representation, or democratic institutions. Despite

numerous recent promises by Pakistans government to reform the FCR and improve the legal

situation of the people of FATA and NWFP governed by this law, as of May 2010, the FCR

continued to relegate millions of people in northwest Pakistan to second-class legal status.

The separate status of the FATA and the FCR were retained by successive governments of

independent Pakistan and remained unchanged in the constitutions adopted in Pakistan in

1956, 1962 and 1973. Though Part II of the Constitution of Pakistan of 1973 lists a range

of fundamental rights, Part XII explicitly excludes most or all of the legal, judicial and

parliamentary system of Pakistan from FATA; articles 247(3) of the Constitution explicitly


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27

excludes FATA from all acts of the Pakistani parliament and Supreme Court, respectively.37

Instead these areas are effectively placed under the direct executive control of the President

of Pakistan, while the Governor of the NWFP acts as the Presidents representative. The

President may make regulations with respect to the peace and good governance of FATA

and specify which laws are or are not to be extended to FATA. Adult franchise was introducedin FATA in 1996; FATA representatives were elected on a non-party basis not to any FATA

parliamentary body but to the National Assembly where they cannot exercise any legislative

powers with regard to FATA. Interestingly, the President of Pakistan has the authority under

the Constitution (article 247(6)) to end at any time the applicability of the FCR to any agency

after consultation with a tribaljirga.

Under the FCR, the federal governmenteffectively, the President of Pakistanappoints a

Political Agent (PA) for each FATA agency who exercises extensive administrative, judicial

and executive powers. In exercise of his judicial powers under the FCR, on vaguely-defined

grounds he can order that individuals or entire communities be detained without trial for

years at a time, seize their property, and impose fines, all without any requirement of

ordinary criminal trial. Except in the case of procedural flaws, his decision is final: the FCR

precludes appeal to any court outside FATA, as the jurisdiction of Pakistans higher judiciaryis explicitly barred under Article 247(7) of the Pakistani constitution. Under Chapter III of

the FCR, the PA may consult a Council of Elders (in practice a tribaljirga) to resolve

disputes, including in criminal cases; suchjirgasare traditionally made up of at least three

maliks, all men appointed and dismissed by the PA on his subjective estimation as to

whether the individual concerned adequately serves the interests of the region.38

The provisions of the FCR violate many of the human rights guaranteed to all people in

Pakistan in the Constitution of Pakistan; the people of FATA are deprived of the right to

equality before law and equal protection of law (as provided for under article 25(1) of

Pakistans Constitution) as their human rights protection falls considerably short of that

available to other people in Pakistan.39 The governance system established by the FCR also

violates Pakistans international obligations assumed under ratified human rights treaties and

under customary international human rights law.

The judicial system provided by FCR is severely flawed from a human rights perspective.

Defendants do not have the right to be presumed innocent; the right to legal representation;

the right to call or cross-examine witnesses; the presumption of innocence is absent and

neither bail nor appeal against a sentence to a higher court are permitted. The right to fair

trial before an independent and impartial court is a norm of customary international human

rights and humanitarian law. The right to fair trial is also recognised under article 10 of

Pakistans Constitution. Neither ajirgaarbitrarily established by a Political Agent nor the

office of the PA, which combines judicial and executive functions, constitute an independent

and impartial court. Pakistan government forces have utilized FCR as the basis of acts

violating international human rights provisions; for instance, invoking FCR rules to detain

women and children who are related to tribal leaders or elders, to pressure them to capture

and hand over militants.40

A particularly problematic aspect of the FCR is its explicit authorization for the PA to mete

out collective penalties against an entire community for alleged infractions by any of its

members. Chapter IV of the FCR allows the PA to blockade hostile or unfriendly tribe[s];

and to assess a fine on communities accessory to crime.41 These clauses have been

frequently invoked to punish entire tribes for the alleged infractions of a fewmost recently,


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and notably, during the large-scale military operations in South Waziristan in October 2009,

the military treated many members of the Mehsud tribe as suspects and blocked their access

to crucial humanitarian aid (more details of this operation appear below in the discussion of

the 2009 South Waziristan campaign).42 The FCR collective responsibility clauses violate the

customary international human rights and humanitarian law prohibitions on collective

punishment explained more fully below in the Section on Applicable International Legal

Frameworks.

The reliance onjirgasunder the FCR in practice discriminates against women by providing

them no access to the tribal councils that in the case of many disputes may decide their fate

and whose procedures include few or no rights or protections for those affected. This severe

curtailment of the ability of women living in FATA to represent and defend their rights

violates the constitutional guarantee of Article 25(1) of Pakistans Constitution which states

that all citizens are equal before law and are entitled to equal protection of law of equality

before law and equal protection of law as well as of Article 25(2) which states, there shall

be no discrimination on the basis of sex alone. The jirga system established under the FCR

also violates Article 15 of the CEDAW, which requires Pakistan to accord to women equality

with men before the law. Indeed, the Committee on the Elimination of All Forms of

Discrimination against Women in its June 2007 observations on Pakistans compliance with

the CEDAW stated that it was concerned that informal dispute forums (jirgas) continue to

function and take decisions that call for the perpetration of violence against women, despite

the ruling of a superior court requiring the elimination of such forums. It therefore urged

Pakistan without delay to eliminate the jirgas and to ensure that jirga members who

participated in decisions that constitute violence against women are held accountable .43

The FCR is also inconsistent with requirements under the Convention on the Rights of the

Child that special protection be given to children in the criminal justice system. The fact that

children can be and indeed have been held under the collective responsibility clause is a

further violation of provisions of the CRC. The UN Committee on the Rights of the Child

highlighted both of these concerns, with specific reference to the inconsistency of the FCR

with the CRC, in its October 2009 observations on Pakistans compliance with the CRC.

44

The legal regime applied in FATA under the FCR in lieu of the ordinary laws of Pakistan also

appears to be inconsistent with Pakistans obligations under the Convention on the

Elimination of all forms of Racial Discrimination. The UN Committee on the Elimination of

Racial Discrimination, in its March 2009 observations on Pakistans compliance with the

CERD, noted with concern that the laws of the State party are not applicable in the FATA

and NWFP to the same extent as in the other parts of the territory of Pakistan, regretted

the paucity of information provided to it about the territories, and urge[d] Pakistan to

ensure that its national laws, including in particular legislation relevant to the

implementation of the Convention and other human rights instruments ratified by the State

party, are applicable in its entire territory, including the FATA and NWFP.45

The FCR has significantly contributed to an inherently unrepresentative and unresponsive

system of authority that has led to shockingly high incidence of violations of civil, political,

economic, social and cultural rightsand in turn created conditions ripe for an abusive

insurgency and ensuing abusive government response. The inherently problematic political

structure established by the FCR, in which maliksare remunerated in relation to their

usefulness to the PA and maintaining peace in their tribal agency, has over time been further

weakened by the Pakistani Taleban killing scores of maliksfor their alleged collaboration with


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29

the government and/or the army. The resulting vacuum has been filled by insurgent leaders

who seek alliances with the PA or maliks who side with the Taleban.46

Calls for serious reform or outright abolition of this law have become increasingly louder,

particularly in the last few years as the regions unrest has assumed global implications. As

Afzal Khan, a former federal minister for tribal affairs (during the second administration ofthe late Benazir Bhutto) and member of the National Assembly, told Amnesty International in

April 2009: The people of FATA are sick of the FCR and want it to be reformed significantly,

but the existing bureaucracy wants it for its selfish reasons and the central government does

not have the will to tackle this challenge. But now it may have to.47 Following the extension

of adult franchise to FATA in 1996, several initiatives to reform the FCR and to assimilate

FATA to NWFP were announced but have stalled to date. In 2005 General Musharraf publicly

acknowledged the need for reforms; in the same year the NWFP governor established a FCR

Reform Committee.48 With the return of civilian government in 2008, the PPP pledged to

repeal the FCR and to bring FATA into the existing constitutional framework of Pakistan by

either making it a separate province or assimilating it to NWFP. The Pakistan governments

efforts in this regard have been halting and unclear. In March 2008, Prime Minister Yousef

Raza Gilani publicly announced that the FCR had been revoked, but the government did notfollow up with the necessary legal and practical steps. On 14 August 2009, President Zardari

announced a reform package for FATA which, however, retained the FCR. It included

permitting political party activity in FATA, curbing the PAs powers of arrest and detention,

establishing the right of detainees to bail, protecting women and children from the scope of

the collective responsibility provisions of the FCR and setting up an appeals process. In April

2010, President Zardari again promised to reform the FCR soon, but the proposed changes

had not taken effect as this report was finalized.49

Amnesty International calls on the Government of Pakistan government to acknowledge the

lack of human rights protection and failure of governance of the FCR framework and bring the

legal framework applicable to FATA into conformity with Pakistans obligations under

international law, as well as ensuring it respects the human rights set out in Part II of the

Constitution, as quickly as possible by either fully amending it or abolishing it, thereb

Pakistan: 'As if hell fell on me': The human rights crisis in northwest Pakistan

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